28 June 2017

EU citizens' rights on Brexit - The UK's offer

Theresa May has at last played her hand on the issue of citizens rights. This week she laid before Parliament a document titled 'Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU'.

This sets out the UK's offer to the EU:

  • EU citizens who have lived here for a continuous period of five years before a cut-off date, which is yet to be agreed, will be allowed to stay indefinitely by getting ‘settled status’. They will be free to reside in any capacity, have access to public funds and services and apply for British citizenship;
  • the cut-off date for eligibility will be between 29 March 2017 and 29 March 2019;
  • EU citizens who arrived before the cut-off date, but haven’t been here for five years, will be able to get temporary permission to stay until they have accumulated five years, after which they will be able to apply for settled status;
  • EU citizens who arrive after the cut-off date will be able to apply for permission to remain after the UK leaves the EU under the future immigration arrangements for EU citizens. This group should have no expectation of guaranteed settled status; and
  • family dependants who are living with or join EU citizens before the UK’s exit will be able to apply for settled status after five years in the UK too. This is irrespective of the cut-off date. However those joining after the UK's exit will have to meet the UK rules for spouses or any post-exit arrangements for EU citizens who arrive after the cut-off date.

The paper says that since the concept of permanent residence status is linked to the UK’s membership of the EU, it will no longer be valid after the UK leaves.

EU citizens will be required to make an application to the Home Office for documentation demonstrating their new settled status in due course. The process will be as streamlined as possible for all individuals, including those who already hold a residence document under current free movement. The paper states that one of the manifestations of this streamlining is that those EU citizens who are economically inactive, such as the self-sufficient and students, will not need to demonstrate that they have held 'comprehensive sickness insurance'.

The proposal are based on reciprocal arrangements being put in place for UK nationals living in the EU.

It is doubtful that this will represent the final positon on citizens' rights, just as the four page EU Position paper on 'Essential Principles on Citizens' Rights' will not do so either. However, at last we now know the outer limits of each side's opening positions and can identify the areas of common ground. It remains to be seen how much of each side's opening positions consist of ideological strongholds and how much is there just to concede in the negotiations.

In the meantime, we continue to recommend that those EU citizens who qualify now for permanent residence proceed with their applications, as there remains some major differences between the UK and the EU positions and the final position remains uncertain. For example, the EU position is that all citizens' rights should be granted as directly enforceable vested rights, and may put up a fight about the introduction in the UK of a new registration scheme for those who have already acquired permanent residence status, which could easily be dealt with by a simple legislative provision that those with permanent residence status would automatically be deemed to have settled status. Furthermore, for those EU nationals who wish to naturalise as British citizens, it remains a current requirement to have a certificate of permanent residence.

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